Bombay High Court Hears Criminal Writ Petition Challenging Preventive Detention Under COFEPOSA; Grounds Include 12-Year Execution Delay and Non-Supply of Material Translations.

Criminal writ petition under Article 226 challenging a preventive detention order under COFEPOSA.

The petitioner, Musthafa Ahamed Dossa (detenu), sought quashing of the detention order dated 25th March 1992 passed by the Joint Secretary, Government of India, on grounds of delay, non-supply of translations, non-consideration of representations, and non-application of mind.

The detention order was passed in 1992 but was executed only in April 2004 after a delay of 12 years. The petitioner challenged the order after its execution, contending that the prolonged delay and procedural lapses rendered the detention illegal.

An earlier detention order dated 30th January 1996 by the State of Maharashtra was revoked after the Advisory Board opined no sufficient cause. Another order dated 28th August 1992 by the State was revoked on 27th January 2004. The present writ petition (Criminal Writ Petition No. 667 of 2004) filed earlier was disposed on 26th April 2004 as the impugned order was served.

Gross delay in execution of the order of detention. Before execution after long delay, the detaining authority failed to record satisfaction that there was imminent possibility of the petitioner being released on bail and that looking to his propensity and potentiality, the order needed to be given effect to. Delay in considering the representations dated 6th February 2004, 10th February 2004 and 11th March 2004. Non-placement of translation of endorsements in Kannada language on certain documents before the detaining authority, leading to non-application of mind. Non-supply of translation of those endorsements to the petitioner in Urdu, breaching Article 22(5) and preventing effective representation. Documents placed before detaining authority came into existence on 24th March 1992, and the order was passed on 25th March 1992, leaving insufficient time for application of mind.

The petitioner argued that the 12-year delay in execution vitiated the detention order as the live and proximate link between the prejudicial activities and the purpose of detention was snapped. It was contended that the detaining authority did not record any satisfaction that the petitioner was likely to be released on bail or that he still posed a threat requiring detention, thereby rendering the execution illegal. The petitioner submitted that his representations for revocation were not considered expeditiously, violating his constitutional right. Non-supply of translations of endorsements in Kannada to the petitioner in Urdu prevented him from making an effective representation, in breach of Article 22(5). It was argued that the detaining authority had insufficient time to apply its mind to documents that came into existence just one day before the order was passed.

The impugned order dated 25th March 1992 was passed against the Petitioner with a view to preventing him from smuggling goods in future. The D.R.I. Authorities recorded a statement of one Abdul Khader of Uchila under Section 108 of the Customs Act,1962. He stated that he was doing smuggling for last 25 years and for last 5 years he was working with the gang headed by the Petitioner who was also known as Tiger Musthafa or Manju Musthafa. The Petitioner contended that there was a gross delay in execution of the order of detention. It is also contended in the Petition that before execution of the impugned order of detention, the detaining authority has not recorded satisfaction that there was imminent possibility of the Petitioner being released on bail.

8th March 1992: DRI intercepted truck with smuggled silver bricks and pistol. 9th March 1992: Statements of various persons recorded under Section 108 Customs Act. 25th March 1992: Impugned detention order under COFEPOSA passed by Respondent No.1. 28th August 1992: Another detention order passed by State of Maharashtra against petitioner. 30th January 1996: Detention order under COFEPOSA passed by State of Maharashtra. Petitioner absconded and went to Dubai. March 2003: Petitioner brought to India in connection with TADA case, detained in Mumbai. After being brought, served with detention order dated 30th January 1996. Advisory Board opined no sufficient cause; State revoked order dated 30th January 1996. 5th April 2003: Petitioner's advocate sent letter informing custody and requesting execution of any pending detention order. Subsequently served with order dated 30th January 1996. 17th December 2003: Advocate sent letters to authorities to execute pending orders. Petitioner discovered impugned order dated 25th March 1992 from documents supplied with 30th January 1996 order. Late 2003: Application before TADA court for directions to serve detention orders. 27th January 2004: State Government revoked order dated 28th August 1992. 6th February 2004, 10th February 2004, 11th March 2004: Petitioner's representations to Respondent No.1 for revocation. 7th April 2004: Filed Criminal Writ Petition No.667 of 2004 for quashing on ground of delay. 8th April 2004: Copy sent to Respondent No.1. 12th April 2004: Division Bench took time for instructions. 24th April 2004: Impugned order served on petitioner. 26th April 2004: Earlier writ petition disposed as order served. Later: Present writ petition No.1627 of 2004 filed challenging order on various grounds. 21st December 2004: Last hearing. 1st February 2005: Pronouncement of oral judgment.

• Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA): Section 3(1)
• Customs Act, 1962: Section 108
• Constitution of India: Article 226, Article 22(5)